Chapter 24 Implications of a New Treaty for Marine Biodiversity for the Asia-Pacific Region

In: Peaceful Maritime Engagement in East Asia and the Pacific Region
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Joanna Mossop
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Abstract

States are currently negotiating a new treaty on the conservation and sustainable use of marine biodiversity (BBNJ Treaty). The General Assembly has instructed that the outcome ‘not undermine’ existing relevant legal instruments and frameworks and relevant global, regional, and sectoral bodies. This means that regional arrangements will take on particular importance once the treaty is finalised. This chapter outlines the positions of states in the negotiations and explores some implications for the Asia-Pacific region.

1 Introduction

At the time of writing, negotiations are underway for a treaty for the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (bbnj Treaty or Treaty). The Treaty negotiations were authorised by the United Nations General Assembly in Resolution 72/249. However, discussions around the topic of the Treaty have been ongoing since 2006.1

Although it is obviously impossible for the author to predict the outcome of the final negotiations, this chapter will explore some of the implications of the draft Treaty for the Asia-Pacific region. It will explore the positions of key states from the region in the negotiations. It is not possible to identify a common interest of states in the region because the Asia-Pacific is a very diverse region with a combination of developed and less developed states, who have different concerns about the new treaty. However, identifying the positions of states in the negotiations can reveal the opportunities and potential challenges that the bbnj Treaty presents for the Asia-Pacific.

This focus on the Asia-Pacific region reflects two important factors. First, a regional approach to cooperation for the conservation and sustainable use of marine biodiversity is both permitted and encouraged by the draft text of the Treaty. Considering how the Treaty may interact with existing regional governance mechanisms can provide a useful indication where the regional architecture might be improved. Second, the variety of interests in the region mirror the wider range of interests in the negotiations. Comparing the positions across the Asia-Pacific provides some perspective on the challenges of finalising the Treaty.

First, what is the Asia-Pacific region? There is currently a movement in strategic circles to use Indo-Pacific rather than Asia-Pacific as a regional descriptor.2 However, this concept is subject to some controversy, and I intend to use Asia-Pacific in a descriptive capacity. Thus, this chapter will consider littoral countries in Asia as well as the Pacific region. The small island States of the Pacific are often overlooked in discussions using an Asia-Pacific lens. This chapter will discuss both. I will not be considering countries such as Australia, New Zealand, or those in North or South America.

This chapter first provides a brief overview of the negotiations to date. Next, it covers the key characteristics and positions of states from the Asia-Pacific region and highlights some selected implications for the region.

2 Overview of the Negotiations to Date

The international community began to discuss issues associated with the conservation and sustainable use of marine biodiversity in an ad hoc, informal working group, established by the General Assembly in 2006.3 At the time, a range of concerns prompted the discussions. These included concerns about the sectoral and divided governance of areas beyond national jurisdiction (abnj), the absence of a regulatory mechanism for new uses of the oceans, and the need for a mechanism to establish marine protected areas for abnj. A key issue from the beginning was the call by many developing states to include marine genetic resources, especially those on the deep seabed, as common heritage of mankind. This caused very deep divisions in the discussions because many developed states considered that the freedom of the high seas applied to the exploitation of marine genetic resources in abnj.

A series of working group meetings were held in subsequent years. In 2011, states agreed on elements of a ‘package’ that would focus the discussions and potentially move towards a new instrument.4 In 2015 the General Assembly authorised four sessions of a Preparatory Committee,5 and then in December 2017, the General Assembly authorised four sessions of an Intergovernmental Conference (igc) to be held in 2018 and 2019.6 The first three sessions of the igc were held as planned, but the fourth igc was postponed due to the covid-19 pandemic.7 At the time of writing, the fourth session is yet to be held.

General Assembly Resolution 72/249 directed states to discuss the issues identified in the 2011 package,

namely, the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology.

A further important aspect of the Resolution was the instruction that ‘this process and its results should not undermine existing relevant legal instruments and frameworks and relevant global, regional, and sectoral bodies’ (grsbs).8 This instruction was intended to ensure that the new Treaty would not override or upset existing arrangements. However, it has proven to be one of the hardest issues to resolve during the negotiations. While there is general agreement that a Conference of the Parties (cop) will be established, along with a secretariat and a scientific and technical committee, it is not yet agreed whether (and how) the cop will be able to make decisions on subject matters that intersect with other bodies. There has been much discussion about whether the institutional arrangements will be based on a global, hybrid or regional approach.9 For example, will the cop be able to establish a Marine Protected Area (mpa) itself, or will it be limited to identifying potential areas for an mpa, relying on sectoral or regional institutions to implement it? What if there is no competent body authorised to establish mpas? These questions remain unanswered following igc 3.

The President of the Conference, Ambassador Rena Lee, has released two versions of a draft text. The first was discussed at igc 3,10 and the revised draft text will be discussed at igc 4.11 A key characteristic of both draft texts is that much of the language is bracketed (i.e. not yet agreed). This reflects ongoing disagreements among states about key aspects of the treaty. The following analysis is, in part, based on the author’s observations of the three igcs.12

3 Key Issues in the Negotiations

As mentioned above, four key elements are being negotiated in the igc, plus a number of cross-cutting issues.

3.1 Marine Genetic Resources (mgrs)

The first issue is the legal regime for access to and benefit sharing of mgrs in abnj. mgrs have the potential to be the source of new biotechnology such as pharmaceuticals, and developing countries initially argued that species found on the seabed should be governed by the principle of common heritage of mankind, in the same way as mineral resources. This would allow all states to benefit from the exploitation of resources found in commons areas.

Many industrialised states have argued that high seas freedoms should apply, and unfortunately there doesn’t seem to be much agreement about the applicable principles. Although the general approach in the current negotiations is that the regime will apply to mgrs in all abnj, high seas and seabed, the question is what principles will apply to the regime.13 The first draft of the text excluded common heritage of mankind from the text which was vigorously opposed by the G77. Other issues include what types of research will be covered in the treaty, what access provisions might apply, and whether monetary or non-monetary benefits might result.

Some of the larger economies in Asia potentially could develop marine genetic resources in abnj. Japan is one country that has a clear commercial interest in mgrs, including in abnj.14 The other large states are also in a position to participate in high-cost activities such as research into mgrs in abnj, in comparison to smaller economies.15 It is therefore not surprising that those countries have emphasised the importance of not infringing the freedom of scientific research.

Other states in the region, such as the Pacific Small Island States (psids) grouping and the Philippines, made it very clear (both individually and as part of the G77) of the importance of using the common heritage of mankind principle to structure the mgrs section of the Treaty. In light of the reluctance of developed states to directly refer to common heritage of mankind, it is difficult to see how the issue will be resolved.

3.2 Area-Based Management Including Marine Protected Areas

The second element focuses on area-based management tools (abmt) including marine protected areas (mpas). Currently, a number of grsbs can, and do, impose area-based measures. For example, regional fisheries management organisations (rfmos) will sometimes impose seasonal or permanent closures of certain areas.16 Other organisations have created more permanent area-based restrictions for environmental protection.17 But these are hard to get agreement on, and they are almost never cross-sectoral in nature. While states seem to agree that a process is needed for the identification of suitable areas, there is still significant debate about how the Conference of the Parties (cop) will interact with existing bodies and frameworks. For example, if the cop agrees that there is a vulnerable area in a place in which an rfmo exists, what is the appropriate division of responsibilities between the cop and the rfmo? What happens when there is no rfmo? Can the cop establish an mpa, or will an rfmo be formed?18

At igc3, the larger economies such as China and Japan were resistant to the possibility that non-state parties might propose areas for abmts. They were also concerned about the possibility that the cop might impose compulsory measures which touch on the mandate of other organisations. China mentioned both the Ross Sea mpa and the Arctic Fisheries Agreement as good examples of what can be done in a regional setting. It is interesting to note that both these initiatives for protection expire after a specified period of time. In contrast, psids were much more open to the idea that non-state actors might make proposals for abmts.

3.3 Environmental Impact Assessments

The third element is environmental impact assessments (eias). Article 206 of unclos requires states to undertake environmental assessments of activities likely to cause significant and harmful changes to the marine environment. According to article 205, those assessments are meant to be reported to the competent international organisations which should make them available to all states. However, this obligation has been poorly complied with.19 Perhaps due to a growing international familiarity with eias, this element of the package has achieved more consensus than other elements. The draft texts have included quite extensive provisions about how environmental impact assessments are to be conducted. However, questions remain about the types of activity that will require an eia, and the threshold at which an eia would be required.20

Japan, South Korea and China have taken the position that eias should be undertaken and assessed by states parties only. They prefer that the cop or committees under the cop play a minimal role. In contrast, psids prefer that the institutional arrangements provide both an additional evaluation of the eias, and assistance for states with lesser capacity. The Philippines was very keen to ensure that adjacent coastal States will be included and consulted.

3.4 Capacity Building and the Transfer of Marine Technology

The fourth element is capacity building and the transfer of marine technology.21 There is a general acknowledgement that Part xiv of unclos has been poorly implemented. While there is no opposition to the idea that capacity building and transfer of marine technology are necessary, there is something of a divide between developed and developing countries about whether it will be compulsory for developed states to provide financial assistance under the Treaty.

3.5 Cross-Cutting Issues

Among the cross-cutting issues, there is a fundamental question about the institutional relationship between existing institutions and the cop. The requirement in the ga Resolution that the new treaty ‘not undermine’ existing frameworks and grsbs has created some tensions within the negotiations. It is often stated that there are three possible approaches to the institutional framework: global, regional or hybrid. A global approach would allow the cop to play a lead in developing new regulations and processes. Prior to the agreement to ‘not undermine’ existing bodies, some proponents of the global approach argued that the cop should be able to override other bodies. Now, proponents of the global approach are keen for the institutions under the Treaty to perform as much of the decision making as possible. A regional approach, in contrast, would limit the role of the cop when there are existing bodies with a mandate to regulate activities in the high seas. A strong version of a regional approach would result in cop having no mandate to address these issues. Closely connected to this is the possibility that fisheries might be excluded from the scope of the agreement.22 A hybrid approach implies a mixture of these approaches, but there is a variety of views on how a hybrid regime might work.

4 The Asia-Pacific Region and Oceans Governance

4.1 Characteristics of the Asia-Pacific Region

The Asia-Pacific contains essentially two distinct areas within the region. On the one hand we have North and South Asia. In this part of the world there are fewer areas of the high seas, as well as considerable debate about territorial sovereignty and the appropriateness of claims to maritime zones. The finding of the South China Sea arbitral tribunal, if implemented, would have resulted in an area of the high seas in the middle of the South China Sea.23 However, the outcome is not accepted by China. Most of the remaining ocean area is dominated by eezs. It is really the edge of the Pacific where significant high sea areas begin.24

In the Pacific, coastal State eezs dominate the southwest Pacific, but there are still plenty of large areas of high seas. Pacific states often express concern about the management of ‘high seas pockets’ created by gaps between the eezs. They are particularly concerned about the impact of fishing in these areas. Beyond the Southwest Pacific, there are large stretches of oceans that are abnj.

Although the two areas have a different mix of eezs to abnj, one important thing to note is that ocean ecosystems are interconnected. Ecosystems can be connected to distant parts of the ocean either passively (through ocean currents) or actively through the migratory patterns of sea birds, sea turtles, sharks and marine fish.25 Ecosystem connectivity means that the interests of distant coastal States may be affected by activities in abnj. So even for parts of the world that are dominated by eezs, what happens in the high seas can have an impact in areas of national jurisdiction.26

When thinking about the interests of states in the region, it is clear that there is a diversity of interest based on national circumstances. States range from industrialised counties with significant economies, to middle income countries with large eezs, to small island developing States. The larger states in the region also are distant water fishing nations. For these countries, protection of their access to fisheries is a priority. Although they are engaged in the negotiations, they are perhaps more conservative than others in acknowledging a potential role for the cop created by the Agreement. They tend to prefer an institutional structure that gives considerable deference to existing institutions, which would include rfmos.

Smaller economies may be highly dependent on their eez for providing income – this is especially true of Pacific small island developing States (often referred to as psids). They are often conscious of the impact that high seas activities have on their own eezs. They are more likely to be hopeful that the mgr regime will provide financial benefits, and to support a more active cop.

There is also the matter of diversity between parts of the region.

The Asian region is, of course, dominated by disputes in relation to maritime zones. This includes disputes over the sovereignty of islands and other features, as well as disputes about the entitlement to maritime zones from those features. This means it can sometimes be difficult to identify where abnj are and to cooperate in their regulation. Although there are examples of regional and bilateral cooperation, such as with fisheries, these tend to be limited, and modest in nature.

In the Pacific, almost the opposite is true. While there are a few disputes about maritime zones, these are fairly limited in comparison to Asia. The defining characteristic of this region is the high level of cooperation between states on maritime matters such as fishing and pollution.27 Organisations in the Pacific are doing a fairly good job of ensuring that the use of abnj are sustainably managed. For psids, there is a considerable amount of concern about the regulation of fishing and other activities in the high seas pockets in the Western Pacific. States have long been worried that activities on the high seas might undermine efforts in the region to conserve biodiversity.

rfmo coverage is good in the South and North Pacific, but less so in the abnj bordering Asia. Although the tuna rfmos tend to achieve good coverage, there are overlapping areas of jurisdiction where coordination can be a problem.28 For non-tuna rfmos, it is striking to see the number of gaps in regional coverage. There are parts of the Asian region where no rfmo exists – this may in part due to the fact that non-tuna rfmos tend to focus on high seas areas, and there are fewer of those in Asia. But it is also likely the lack of rfmo reflects the problems in engaging in cooperation when significant disputes exist about sovereignty and maritime zones.

A final type of regional body are regional seas agreements (rsas). They tend to focus on the prevention of pollution and tend not to have much jurisdiction over abnj. Although there is a rsa that exists in the Asian region, it is not extremely active and not particularly focused on regulation of activities. In the Pacific, the Secretariat of the Pacific Environment Programme (sprep) is the secretariat charged with supporting the work of psids to address environmental management challenges, including oceans.

4.2 The Different Positions of Asia-Pacific States and Implications

While larger Asian states, including Japan, China and South Korea, are happy to negotiate the Treaty, they are interested in ensuring that the scope of the treaty is limited, particularly when it comes to fisheries. They tend to favour decision making in the cop to be based on consensus, which means that states retain the ability to essentially veto proposals that they consider to be not in their best interests. While some larger states are part of the G77 and China grouping, it seems that there is some divergence between the interests of the larger states and smaller states on the role of the common heritage of mankind principle.

A key issue for the distant water fishing states in the region is to ensure that the cop does not gain a mandate to impose measures, or even suggest them, in relation to sectoral areas where there are existing organisations. rfmos are much smaller entities, in which key players can exert much more influence than in a cop open to all states. However, other states are keen to see the cop take measures that are complementary to the mandate of existing organisations.29 The outcome of this would be a role for the international community to examine the performance and mandate of regional organisations, which might make some members of rfmos uncomfortable.

Of course, one can anticipate problems if it is proposed that, say, measures to regulate fishing in an area that is not covered by an rfmo, be established under the cop. In parts of the Asian maritime region, there are disputes about the ability of small features to generate eezs. There are also unresolved disputes over sovereignty and maritime zones which means it is harder to agree on which areas are under national state jurisdiction and which are areas beyond national jurisdiction. This has proven to be a challenge to cooperation among states in relation to fishing, for example.30 It might be worthwhile including some provisions about what to do in situations when states are in dispute.

Draft article 6 requires states to cooperate for the purposes of conservation and sustainable use. The third paragraph reflects the tension between the global and regional approaches. On the one hand, many states believe that if there is no existing body, then the cop should have the ability to impose measures to protect biodiversity. On the other hand, proponents of a more regional approach argue that if no such body exists, one should be created. Paragraph 3 is still in brackets, which indicates it is not accepted yet.

If the Treaty does require the establishment of regional organisations where there are currently none, this means that the Asian region may need to be considered. One option is for existing organisations to be extended to cover the area. Another is to create a bespoke organisation. This may prove to be a challenge given the disagreements around maritime zones and territorial sovereignty.

The problem of the relationship between the cop and gsrbs is also found in draft article 15 about how abmts should be established. Under the current draft, there are a number of possibilities about how an abmt could be established. First, through existing bodies. Second, by the cop to complement measures in other bodies. This latter is controversial and opposed by those who would argue that the existence of a body with a mandate over an activity means that it is up to that body to regulate all aspects of the activity. In their view, if an rfmo exists, the cop would not be able to issue measures for fishing activities. Third, there are alternative approaches to the situation where no relevant body exists. The first option is that the cop could implement abmt measures itself. The second option is that the cop cannot create abmts, a body must be created to take those decision. This debate is still far from settled at present.

Smaller economies particularly in Southeast Asia may benefit from capacity building and any benefit sharing that is created by the mgr regime.

In the Pacific, smaller states are more likely to favour an institutional framework for the bbnj that is more centralised and supportive of states with low capacity to implement the Treaty. The Pacific already has a well-developed institutional architecture in place to manage oceans, especially fisheries, and would not want to lose their autonomy. For psids, the new Treaty is an opportunity to incentivise states to improve their focus on marine biodiversity in abnj, which strongly affects biodiversity in their own maritime zones. They are keen to see compulsory monetary contributions to build capacity and hope that their obligations under the treaty can be supported by a stronger, well-resourced set of bbnj institutions.

The Pacific has much to gain from the bbnj agreement. Requirements on parties to cooperate to ensure sustainable use of biodiversity may empower small states to raise the issues in existing bodies and may help to tip the balance in favour of expanding mandates of grsbs to include biodiversity protection where necessary.

The cooperative approach in the Pacific is very visible in the bbnj negotiations, where the group representing psids is extremely active and engaged. It does a great job of ensuring that the voice of the region is heard loud and clear.

A key issue for psids has been the inclusion of traditional knowledge on a similar footing to science as a source of knowledge.31 Despite some initial reluctance on the part of some states, the use of ‘scientific information and relevant traditional knowledge of indigenous peoples and local communities’ is now found in several places in the revised draft text.32

On the other hand, psids will not get everything they would like. The efforts to raise the role of coastal States in adjacent areas of the high seas, such as in high seas pockets have so far been resisted by many states. Any ability to benefit from capacity building and mgrs may be inhibited by the reluctance of larger states to agree to monetary benefit sharing or compulsory financial contributions to support benefit sharing.

And finally, the shape of the relationship between the relatively effective regional architecture in the Pacific and the cop is not yet clear. This will depend on the shape of the final text.

5 Conclusion

The requirement that the Treaty negotiations ‘not undermine’ global, regional and sectoral bodies makes some sense. Regional arrangements can be an effective approach to managing activities. As Durussel et al have acknowledged, ‘working at the regional level has been shown to drive better legal commitment and policy convergence between regional States, thus leading to large-scale changes being more efficiently tackled in the longer term.33 Despite this argument, it has also been shown that regional organisations can be ineffective, especially in relation to rfmos.

The draft text still reflects considerable disagreement about key aspects of the treaty. Many have their doubts that the fourth session of the negotiations will result in an outcome given the wide gaps in positions that have no obvious solution. Those wide gaps are also present in the region.

Although Asia and the Pacific are very different in terms of the interests of the coastal States and the institutional framework, the agreement does have promise that it might lead to a renewed focus on cooperation for the purposes of conserving marine biodiversity. And smaller states in particular may benefit from the provisions on mgrs and capacity building.

1

See, e.g. Kristina Gjerde et al, ‘Building a platform for the future: The relationship of the expected new agreement for marine biological diversity in areas beyond national jurisdiction and the UN Convention on the Law of the Sea’ (2019) 33 Ocean Yearbook 3–44; J Ashley Roach, ‘The BBNJ Process: Gaps and Prospects for Success’ (2021) 35 Ocean Yearbook, 52–84.

2

See, e.g. Felix Heiduk and Gudrun Wacker, ‘From Asia-Pacific to Indo-Pacific: significance, implementation and challenges’, (swp Research Paper, Berlin, September 2020) https://doi.org/10.18449/2020RP09; Rory Medcalf, ‘Reimagining Asia: From Asia-Pacific to Indo-Pacific’ in Gilbert Rozman and Joseph Chinyong Liow (eds) International Relations and Asia’s Southern Tier (Springer, 2018) 9–28.

3

General Assembly Resolution 59/24, para 73.

4

General Assembly Resolution 66/231, para 167.

5

General Assembly Resolution 69/292, 19 June 2015. Paragraph 1(a) tasked the Preparatory with making substantive recommendations to the General Assembly on the elements of a draft text of an internationally legally binding instrument under unclos.

6

General Assembly Resolution 72/249.

7

A number of authors have written summaries of the bbnj negotiations. See for example, Rachel Tiller et al, ‘The once and future treaty: Towards a new regime for biodiversity in areas beyond national jurisdiction’ (2019) 99 Marine Policy 239–242; E Mendenhall et al, ‘A soft treaty, hard to reach: the second intergovernmental conference for biodiversity beyond national jurisdiction’ (2019) 108 Marine Policy 103664; Elizabeth De Santo et al, ‘Stuck in the middle with you (and not much time left): The third intergovernmental conference on biodiversity beyond national jurisdiction’ (2020) 117 Marine Policy 103957; E Papastavridis, ‘The Negotiations for a new implementing agreement under the UN Convention on the Law of the Sea Concerning Marine Biodiversity’ (2020) 69 (3) International and Comparative Law Quarterly 585–610.

8

General Assembly Resolution 72/249, para 7.

9

Andrew Friedman ‘Beyond “not undermining”: possibilities for global cooperation to improve marine environmental protection in areas beyond national jurisdiction’ (2019) 76 Journal of Marine Science 452–456; Nicola Clark, ‘Institutional arrangements for the new BBNJ agreement: moving beyond global, regional and hybrid’ (2020) 122 Marine Policy 104143.

10

<https://www.un.org/bbnj/content/third-substantive-session>.

11

<https://www.un.org/bbnj/content/fourth-substantive-session>.

12

Although the author is an observer with the New Zealand delegation, all views expressed here are her own and do not represent the views of the New Zealand government.

13

Vito de Lucia, ‘The question of the common heritage of mankind and the negotiations towards a global treaty on marine biodiversity in areas beyond national jurisdiction: No end in sight?’ (2020) 16 McGill International Journal of Sustainable Development Law and Policy 138–157; Alice Vadrot et al, ‘Who owns marine biodiversity? Contesting the world order through the ‘common heritage of mankind’ principle’ (2021) Environmental Politics, doi: 10.1080/09644016.2021.1911442.

14

David Leary, ‘Marine genetic resources in areas beyond national jurisdiction: do we need to regulate them in a new agreement? (2018) 5 Maritime Safety and Security Law Journal 22–47.

15

Alex D Rogers et al (2021) ‘Marine genetic resources in areas beyond national jurisdiction: Promoting marine scientific research and enabling equitable benefit sharing’ (2021) 8 Frontiers in Marine Science, 600.

16

Carole Durussel et al, ‘Strengthening the Legal and Institutional Framework of the Southeast Pacific: Focus on the BBNJ Package Elements’ (2017) International Journal of Marine and Coastal Law 635–671.

17

E.g. Cassandra Brooks et al, ‘Reaching consensus for conserving the global commons: The case of the Ross Sea, Antarctica’ (2020) 12(1) Conservation Letters doi: 10.1111/conl.12676; Elisa Morgera, ‘Whale sanctuaries: An evolving concept within the International Whaling Commission’ (2004) 35 Ocean Development and International Law 319–338.

18

Amy Hammond and Peter JS Jones, ‘Protecting the “blue heart of the planet”: Strengthening the governance framework for marine protected areas beyond national jurisdiction’ (2021) 127 Marine Policy 104260.

19

Deqiang Ma et al, ‘Current legal regime for environmental impact assessment in areas beyond national jurisdiction and its future approaches’ (2016) 56 Environmental Impact Assessment Review 23–30.

20

Robin Warner, ‘Environmental impact assessment in the world’s oceans beyond national jurisdiction: Crafting a comprehensive regime’ in World Maritime University, Workshop and side events report: biodiversity beyond national jurisdiction: Towards the development of a balanced, effective and universal international agreement (2020) 64 Report 33–40, <https://commons.wmu.se/lib_reports/65>.

21

Marjo K Vierros and Harriet Harden-Davies, ‘Capacity building and technology transfer for improving governance of marine areas both beyond and within national jurisdiction’ (2020) 122 Marine Policy 104158; Harriet Harden-Davies and Paul Snelgrove, ‘Science collaboration for capacity building: Advancing technology transfer through a treaty for biodiversity beyond national jurisdiction’ (2020) 7 Frontiers in Marine Science <https://doi.org/10.3389/fmars.2020.00040>.

22

See draft article 8, which includes options for excluding fishing from the part on mgrs, or from the Treaty as a whole. See also Richard Barnes, ‘The proposed LOSC implementation agreement on areas beyond national jurisdiction and its impact on international fisheries law’ (2016) International Journal of Marine and Coastal Law 583–619.

23

George K Ndi, ‘Philippines v China: Assessing the implications of the South China Sea arbitration’ (2016) 8(4) Australian Journal of Maritime and Ocean Affairs 269–285.

24

For the purposes of this chapter, I include the abnj west of the Philippines and Japan in my analysis of Asia. Some of that area is covered by the North Pacific Fisheries Commission, but not all.

25

Ekaterina Popova et al, ‘Ecological connectivity between the areas beyond national jurisdiction and coastal waters: safeguarding interests of coastal communities in developing countries’ (2019) 104 Marine Policy 90–102; Popova et al, ‘So far, yet so close: ecological connectivity between ABNJ and territorial waters’, International Institute for Environment and Development (iied), Briefing, February 2019, https://pubs.iied.org/pdfs/17500IIED.pdf (accessed 18 September 2019); Daniel P. Costa et al, ‘New Insights into Pelagic Migrations: Implications for Ecology and Conservation’ (2012) 43 Annual Review of Ecology, Evolution and Systematics 73–96.

26

A-L. Harrison et al, ‘The political biogeography of migratory marine predators’ (2018) 2 Nature Ecology and Evolution 1571–1578.

27

See, e.g., Joanna Vince et al, ‘Ocean governance in the South Pacific region: Progress and plans for action’ (2017) 79 Marine Policy 40–45; Andrew Wright et al, ‘The cooperative framework for ocean and coastal management in the Pacific Islands: Effectiveness, constraints and future direction’ (2006) 49(9) Ocean & Coastal Management 739–763. Genevieve Quirk and Harriet Harden-Davies, ‘Cooperation, Competence and Coherence: The Role of Regional Ocean Governance in the South West Pacific for the Conservation and Sustainable Use of Biodiversity beyond National Jurisdiction’ (2017) 32(4) International Journal of Marine and Coastal Law 672–708; Carole Durussel et al, above n 16.

28

E.g. The overlap between iattc and wcpfc.

29

See e.g., draft article 15(b).

30

Hongzhou Zhang, ‘Fisheries cooperation in the South China Sea: Evaluating the options’ (2018) 89 Marine Policy 67–76.

31

Clement Yow Mulalap et al, ‘Traditional knowledge and the BBNJ instrument’ (2020) 122 Marine Policy 104103.

32

E.g. draft articles 5(i), 16(1), 21(4), 31(2).

33

Durussel et al, above n 16.

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